Five remarks on the ruling of the Bundesverfassungsgericht in the PSPP-case

On May 5th the Bundesverfassungsgericht (Federal Constitutional Court of Germany; BVerfG) ruled that both (1) the ruling of the Court of Justice of the European Union (ECJ) in Weiss (C-493/17) and (2) the public sector purchase program (PSPP) of the European Central Bank (ECB) – in the context of which 2 trillion in government debt was bought – were ultra vires; and that the Bundesbank (Federal Central Bank of Germany) could only continue its participation in the PSPP after a transitional period of 3 months, if the ECB would undertake a more substantiated proportionality assessment in a new decision (initial decision) of the Governing Council.

This might sound impressive, but it is not. In essence, the BVerfG only requires the Governing Council of the ECB and ECJ to substantiate their decisions so that those decisions would become intelligible to the BVerfG. If this requirement is not fulfilled, the Bundesbank will not be allowed to implement the PSPP and the BVerfG will not abide by the ECJ’s ruling. As the demand for further clarification by the BVerfG is rather modest and easy to satisfy, there seems to be no reason to believe, as some commentators argued, that this judgement undermines the European legal order.

This is even more true since the judgement contains – from a legal point of view – nothing unprecedented. The judgement of the BVerfG

  1. is not the first to declare an ECJ’s ruling ultra vires;
  2. adheres to constitutional safeguards that
    2.1 have been endorsed by the majority of constitutional courts within the EU,
    2.2 have been part of the BVerfG’s case law for more than half a century, and
    2.3 did not undermine the position of EU law in those member states and that time period;
  3. contains criticism of the ECJ’s approach that
    3.1 was already included in the OMT-case,
    3.2 less substantive than in its older ‘Solange I’-criticism, and
    3.3 might improve the functioning of the EU legal order;
  4. contains conditions regarding the participation of the Bundesbank in the ECB program which
    4.1 are not unprecedented, and
    4.2 are less substantial that in the OMT-case;
  5. is part of the checks and balances of a multilevel legal order.

This blog discusses each of these points in more detail below.

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On the reasoning of the ECJ in the PSPP-case

1.745 Germans turned to the Bundesverfassungsgericht claiming that the European Central Bank (ECB) undermined democratic control of the use of state power in Germany. They believed that the new policies of the ECB usurped economic competences that should, according to their constitution and the Treaties, stay in the hands of the national parliament where they can be influenced by the voters. The German court followed the reasoning of the plaintiffs and asked the Court of Justice of the European Union (ECJ) to review the validity of the public sector purchase program (PSPP) that was established by the Governing Council of the ECB. The ECJ recently delivered her ruling in that case. It found that there was no reason to invalidate the program.

The alleged threat to democratic control of government is only mentioned once in the judgement, namely in the description of the claims before the referring court. The ECJ nowhere considers the principle of democratic control of government (in article 2 and 10.1 TEU) for the interpretation of the powers transferred to an independent central bank. The concerns of the Bundesverfassungsgericht remain unaddressed. The ECJ chose other methods of interpretation. This blog will provide a critical review of those choices made by the Court when trying to develop and enforce a standard of review for the compliance with the substantial constraints on monetary policy.

Although those choices of the Court are understandable when viewed separately, they lead to an overall unsatisfactory outcome. They transform substantial constraints into formal constraints, make judicial review of substantial constraints ineffective and undermine the capacity of a treaty to be used as a trust building commitment device. In so far as the participation in the Union, the transfer of powers to the Union and application of EU law in the Member States is conditioned on those substantial constraints by the political or legal constitution of the Member States, the Court, that seems to be unable or unwilling to grant effective protection to those substantial constraints, undermines the full effect, uniform application and further integration.

Continue reading “On the reasoning of the ECJ in the PSPP-case”